Andhra Pradesh High Court - Amravati
D.Jagadish Jagga, Chittoor Dt., vs The State Of Ap., Rep Pp., on 15 December, 2022
Author: C.Praveen Kumar
Bench: C. Praveen Kumar
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THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI
Criminal Appeal No. 29 of 2016
JUDGMENT:(Per Hon'ble Sri Justice C.Praveen Kumar)
1) Heard Sri. Raja Reddy Koneti, learned Counsel appearing for the Appellant/Accused No. 1 and learned Additional Public Prosecutor, appearing for the State.
2) Accused No. 1 is the Appellant herein. Originally, Accused Nos.1 and 2 were tried for the charges punishable under Sections 376, 302 and 201 of Indian Penal Code ['I.P.C.']. By its Judgment, dated 08.12.2015, the learned Sessions Judge, acquitted Accused No. 2 of all the charges and also Accused No.1 for the offence punishable under Section 376 I.P.C., but, however, convicted him for the offences punishable under Sections 302 and 201 I.P.C. and sentenced him to suffer imprisonment for life and to pay fine of Rs.200/- in default to undergo simple imprisonment for one month. Accused No.1 was also sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.200/- in default to undergo simple imprisonment for one 2 month for the offence punishable under Section 201 I.P.C. The substantive sentences were directed to run concurrently.
3) The facts, in issue, are as under: i) PW5 is the mother, while PW6 is the Sister of one
Gayathri ['deceased']. It is said that, the deceased was aged about 14 years as on the date of incident.
ii) PW6, who is the elder sister of the deceased, fell in love with one Ashok, milk van driver, and married him much against the wish of her mother [PW5]. She started living separately in Chittoor. Neighbours informed PW5 that the deceased may also marry someone without her consent and requested PW5 to keep a watch on her. On one occasion, the deceased was having a conversation with a stranger through cell phone. PW5 took the cell phone and heard a male voice talking with her daughter [deceased]. PW5 informed the same to her husband, who beat the deceased and broke the cell phone.
iii) On the next day afternoon, the deceased informing her parents that she wants to go for nature's call, went out of the house, but did not return home. PW5 and her 3 husband searched in the surrounding areas, but in vain. Thereafter, PW6 was enquired who informed that the deceased did not come to her house. About seven [07] days later, PW6 informed PW5 that the deceased is with one Jagadeesh and they are living happily. As both her daughters left with boys of their choice and without their consent, PW5 got vexed with them and left to her mother's house in Karnataka State along with her husband.
iv) About fifteen [15] days later, PW5 enquired PW6, who informed that the deceased was living happily and that there is no need to pursue further. Two [02] months thereafter, PW5 called PW6, who told her that there was no communication from the deceased since last fifteen [15] days.
v) While so, on 13.07.2011 at about 9.00 A.M., PW2, who is a resident of Kattamanchi, Chittoor, and was working as Spare Parts In-charge in JCB Gold Fields Stores, Chittoor, went to barren fields of PW1 for natures call. There was a dilapidated well in the said fields. He heard 4 noise of birds near the well and out of curiosity; went there and saw legs of human body in the well. He made a call to PW1, who is running a Dental Clinic at Police Complex, Chittoor. On receiving the said phone call, PW1 came near to the well, saw the body and immediately went to the Police Station while requesting PW2 to be at the scene. Basing on the report given by PW1, a case in Crime No. 88 of 2011 came to be registered for the offences punishable under Sections 302 and 201 I.P.C. Ex.P19 is the F.I.R.
vi) At about 12.00 Noon, PW1 came to the spot along with the police. They noticed the body as that of a female tied with nylon rope and mouth was closed with chunni. Ex.P2 is the photographs taken at the scene. Thereafter, dog squad was pressed into service, which proceeded upto Chengalarayamitta and stopped near the shop of PW4.
vii) PW20 - the Inspector of Police, who registered the crime, conducted inquest over the dead body between 1.30 to 4.30 P.M. and recorded the statements of PW1, PW2 5 and others. Ex.P5 is the inquest report. He also prepared a rough sketch of the scene, which is marked as Ex.P20. He also got prepared an observation report of the scene of offence in the presence of mediators, which is marked as Ex.P6. After conducting inquest proceedings, the body was sent for post-mortem examination.
viii) PW17, who was working as Civil Assistant Surgeon, Government Headquarters Hospital, Chittoor, conducted autopsy over the dead body and issued Ex.P14 - post- mortem certificate and Ex.P15 is the final opinion given. After conducting post-mortem examination, PC-4038 handed over the clothes of the deceased to PW20, which was seized under Ex.P21.
ix) On 22.10.2011, PW2, PW4 and PW5 along with her husband went to One Town Police Station, Chittoor, where they identified the photo as that of the deceased. Ex.P2 is the photographs, which were identified as that of the deceased.
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x) At this stage, it is also to be noted that, on 30.10.2011 i.e., 3 ½ months after the deceased left the house, Accused No.1 and 2 are alleged to have gone to PW9, who was working as V.R.O. Kattamanchi, and made a confession about the commission of the offence. Ex.P7 is the statement/confession of Accused No. 1 and 2. Thereafter, he took Accused No. 1 and 2 to the Police Station and handed over them to the Police. After affecting their arrest, he recorded the confessional statements, which lead to seizure of cell phone belonging to Accused No. 1 and 2 along with SIM cards. Accused No.1 lead them to the house of one Balaji [PW11] to whom he sold the cell phone of the deceased and also the house of PW10, to whom he sold the motorcycle used in the commission of offence. Accused No. 1 also confessed the place of purchase of rope and, accordingly, he took them to the shop of PW12 situated at Seshapeeran Street, Chittoor. After examining all the witnesses and collecting all the necessary documents, PW20 filed a charge-sheet, which was taken on file as 7 P.R.C. No. 05 of 2012 on the file of IV Additional Judicial Magistrate of First Class, Chittoor.
4) On appearance of the accused, copies of documents as required under Section 207 Cr.P.C., came to be furnished. Since the case is triable by Court of Sessions, the same was committed to Court of Sessions under Section 209 Cr.P.C. Basing on the material available on record, charges as referred to above came to be framed, read over and explained to the Accused, to which, the Accused pleaded not guilty and claimed to be tried.
5) In support of its case, the prosecution examined PW1 to PW20 and got marked Ex.P1 to Ex.P21, beside marking M.O.1 to M.O.19. After completion of prosecution evidence, the Accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses, to which they denied, however, no evidence was adduced in support of their plea.
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6) Relying upon the circumstances of (i) Accused being 'last seen' in the company of the deceased; (ii) the extra- judicial confession made before PW9; (iii) recoveries made and
(iv) the motive; the learned Sessions Judge convicted Accused No.1 alone. Against this conviction and sentence, the present Appeal came to be filed by Accused No.1.
7) (i) Sri. Raja Reddy Koneti, learned Counsel appearing for the Appellant/Accused No.1, mainly submits that, there are no eye witnesses to the incident and the case rests on circumstantial evidence. According to him, in a case arising out of circumstantial evidence, the prosecution has to prove each of the circumstance relied upon by it and the circumstances so proved should form a chain of events connecting the accused with the crime. According to him, the circumstances relied upon by the prosecution are not proved and even if some of them are proved, they do not form a chain of events connecting the accused with the crime.
8) On the other hand, Sri. S. Dushyanth Reddy, learned Additional Public Prosecutor appearing for the State, opposed the same contending that, though there are no eye witnesses 9 to the incident, but 'motive' and 'extra-judicial confession' which are proved beyond reasonable doubt, are sufficient to base a conviction.
9) The point that arises for consideration is, whether the prosecution was able to prove the guilt of the Accused beyond reasonable doubt?
10) As seen from the record, the prosecution mainly relied upon the evidence of PW5 and PW6, to speak about the last seen theory; Accused No. 1 and deceased staying for sometime in the house of PW3 and LW14; the extra-judicial confession made by the Accused before PW9; the evidence of PW12 to show that nylon rope was purchased by the Accused No. 1 from the shop of PW12; sale of motorcycle by Accused No.1 to PW10 and recovery of cell phone belonging to the deceased from PW11.
11) The fact that, there are no eye witnesses to the incident is not in dispute. It is a case arising out of circumstantial evidence. The five golden principles as laid down by Apex 10 Court in the case of Sharad Birdhichand Sarda V. State of Maharashtra1 are as follows:
"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, (1973) 2 SCC 793, where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the 1 (1984) 4 SCC 116 11 guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
36. Before laying down the five aforesaid principles, Justice Fazal Ali speaking for the Court in paragraph 152 extracted a paragraph from the case of Hanumant vs. State of Madhya Pradesh as stated by Mahajan, J. Paragraph 152 is reproduced hereunder:
"Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. The State of Madhya Pradesh, AIR 1952 SC 343,. This case has been uniformly followed and applied by this Court in a large number of later decisions uptodate, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh,(1969) 3 SCC 198 and Ramgopal 12 v. State of Maharashtra, (1972) 4 SCC 625. It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (supra):
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
12) Keeping in view the guidelines laid down by the Hon'ble Supreme Court, in the judgment, referred to above, we shall now proceed to deal with the case on hand.
I. "Last Seen Theory"
13) Coming to the evidence of PW5 and PW6, they are none other than the mother and sister of the deceased. Though, 13 their evidence reveals about a quarrel that occurred at home and the deceased leaving the house without their knowledge.
About seven days after the deceased leaving the house, PW6 [sister] made a call to PW5 [mother] and informed that Accused No. 1 and deceased are living happily. Fifteen days thereafter, PW5 again enquired with PW6, who informed that the deceased and Accused No. 1 are living happily.
14) At this juncture, it would be appropriate to refer to the evidence of PW6, who in her evidence deposed that, the deceased informed her that she will stay in the hostel in-stead of coming to her house at Bangalore, as Accused No.1 [Jagadeesh] promised to keep her in hostel and provide good education. She [deceased] also informed PW6 that she had sexual intercourse with him and she will not leave him. The deceased used to talk to her now-and-then over a period of time. As PW6 lost her cell phone, she changed her SIM card. Ten [10] days prior to Vinayaka Chavathi, PW6 made a phone call to a number from which she used to receive calls from the deceased. Accused No.1 answered the call stating that, the deceased is staying in hostel; boys are not allowed in the hostel and also informed that the deceased will come home to 14 Vinayaka Chavathi day and that he will see that the deceased speaks to PW6 on the day. For about 10 days, there was no communication from the deceased. Hence, PW6 made a phone call to the number from which the deceased used to make calls. Accused No.1 lifted the phone call and when enquired, seems to have given evasive answers about the deceased and, thereafter, switched off the cell phone. Long thereafter i.e., 22.10.2011 they received a phone call from One Town Police Station for identification of a photo.
15) From the evidence of PW5 and PW6, it appears that in the month of July 2011, the deceased left the house and was in touch with PW6 for couple of months and later on there was no response. Only in the month of October 2011, they received a phone call from the Police Station asking them to come to the Police Station for identifying the photograph, which was identified to be as that of the deceased. Basing on nose pin and ring. So, the above evidence makes it clear that from July to October, the deceased was living separately and neither PW5 nor PW6 saw the deceased. But, one fact, which requires to be noted, is that, on 13.07.2011 itself the body was traced in the well of PW1. But, basing on Ex.P2 15 photograph only, it was identified as that of the deceased in the month of October i.e., nearly four months later.
16) At this stage, it would be appropriate to refer to the evidence of PW13, PW14, PW15 and PW19.
17) PW13, in his evidence deposed that, Accused No.1 is a friend of his son, who runs CD shop at Kattamanchi. He also states that, he knows Accused No.1 as he used to visit his son's shop. According to him, sometime in the year 2011 Accused No. 1 came with a girl and informed that the girl is a lover of his friend and requested PW13 to keep the said girl in the house for one day. Accused No.1 came with the said girl at 5.00 P.M., took supper along with the girl in his house and stayed for that night. On the next day at 8.00 A.M. he left with the girl. According to PW13, the name of the girl is Gayathri, resident of B.C. Colony, Aragonda. On 06.11.2011 PW13 identified the photo as that of the girl, who came to his house basing on the photograph. This evidence of PW13 is of no help to the prosecution, for the reason, that PW13 does not mention the month in which Accused No.1 and the deceased came to his house and stayed there for a night. His 16 evidence only refers to the year in which Accused No.1 and the deceased came to his house. If at-least month in which they came to his house was mentioned, an inference could have been drawn for or against the prosecution. Since, only the year is mentioned, it could also be prior to the deceased leaving the house of her parents as well.
18) PW14 was working as pump boy at Kattamanchi. Accused Nos. 1 and 2 were known to him. On one day, Accused No. 1 made a phone call stating that he will bring one girl, who is a lover of his friend and requested PW14 to keep her for two days in his friend's house. PW14 made a call to PW15 [M. Sivakrishna] and requested him to provide shelter to a girl, in the house of his brother-in-law. As the proposal was accepted, PW14 made a phone call to Accused No. 1 to come to Doddipalle, Chittoor. PW14 went to Doddipalle along with PW15, where Accused No. 1 came there with a girl in the month of July, 2011 and again says July, 2011. Accused No. 1 claims to have informed the name of the girl as 'Gayathri'. PW14 and PW15 took Accused No. 1 and the deceased to the house of PW19 and left Accused No. 1 and the deceased in the house of PW19 and returned to their 17 house. However, in the month of November, 2011, the Circle Inspector of Police is said to have enquired, when he helped Accused No. 1 to stay with the deceased in his friend's brother-in-law's house. At that point of time, the witness was declared as hostile.
19) In the cross-examination by Public Prosecutor, a suggestion was put to PW14 by showing the photograph, as to whether it was the same girl who came along with Accused No.1. He denied the suggestion stating that he is unable to say whether the girl in Ex.P2 as the girl, who came along with Accused No. 1 on that day and stayed in the house of PW19. In the cross-examination done by the Counsel for the Accused, it is stated that the Circle Inspector did not show Ex.P2 to him when they enquired. He further submits that the girl was aged about 25 years.
20) Insofar as this witness is concerned, his evidence is not sure as to whether it was in the month of June or July, 2011, when Accused No. 1 and the deceased requested him to provide shelter in the house of his friend. This evidence of PW14 is required to be tested with the evidence of PW15, who 18 blatantly stated that he is not in a position to identify the boy and the girl, as it happened four years ago and, as such, he was declared hostile. He was cross-examined, but nothing useful came to be elicited in favour of the prosecution.
21) PW16 who is the brother of Accused No. 1 also did not support the prosecution case.
22) Coming to the evidence of PW19, who was examined to speak about Accused No. 1 and the deceased living in his house for two days at the instance of PW15. According to him, the deceased alone stayed in the house for a period of one week. When she was leaving in the morning and returning back in the night, his wife telephoned to PW15 and informed the same, who then informed Accused No. 1, pursuant to which Accused No.1 came and took her in an auto. According to him, there was no complaint from the girl at any point of time. In the cross-examination, he admits that, he does not know the name of the girl and has not talked with her. He also states that, the girl was aged about 30 years. It was further elicited in the cross-examination that he does not know the name of Accused No. 1, who is a friend of his 19 brother-in-law. He further admits that, he has seen Accused No. 1 in the Court on two occasions and previously he has not seen him anywhere and also stated that the girl was not married.
23) From the answers elicited in the cross-examination of PW19, who was examined to speak about Accused No.1 being 'last seen' in the company of the deceased, admits that he has seen Accused No. 1 only on two occasions in the Court and he has not seen him at any time and anywhere. It would be appropriate to extract the same, which is as under:
"I did not state to the police the name of the girl as I did not know her name. I do not know the name of A.1, but he is friend of my brother in law Siva Krishna. I did not know the occupation and residential address of A.1. I saw A.1 in the court on two occasions. Previously I did not see him anywhere. It is not true to say that I do not know anything about the facts of this case I am giving false evidence as per the instructions of Police."
24) That being so and having regard to the fact that, PW15 did not support the prosecution case and PW14 was also declared hostile at a particular stage, coupled with the answers elicited in the evidence of PW13 and PW14, it can be 20 said that prosecution has failed to prove beyond reasonable doubt the first circumstance of 'accused being last seen in the company of the deceased'.
II. "Extra-Judicial Confession made by the Accused before PW9 [V.R.O]"
25) PW9, who was working as V.R.O. Kattamanchi, also acted as panch witness for all the proceedings including holding of inquest, scene of offence panchanama and rough sketch of the scene. According to him, on 30.10.2011 at about 9.00 A.M., while he was in his house, Accused Nos. 1 and 2 came to his house and informed that One Town Police are searching for them and they are afraid of Police and asked him to help them. They are alleged to have disclosed the commission of offence, which was reduced into writing. But, in the cross-examination, he admits that, he has not recorded the confessional statement of Accused Nos. 1 and 2 separately and he also says that he has not recorded the statement of accused in verbatim. He also admits that, he knows Accused Nos. 1 and 2 as both of them are residents at Anjaneya Swamy Temple Street. To a suggestion that Accused No. 1 did not appear before him and made a confession was denied by 21 him. However, the investigating officer [PW20] in his cross-
examination admits that, no witness has stated before him about participation of Accused No. 2 in the commission of offence. PW20 also admits that, in the extra-judicial confession of Accused Nos. 1 and 2, it was not mentioned that they have given the alleged statement without any influence by any person.
26) Question now is, whether this "extra-judicial confession"
can be believed?
27) In the case of Sansar Chand vs. State of Rajasthan2, Hon'ble Apex Court in paragraph 29 observed as under:-
"29. There is no absolute rule that an extra judicial confession can never be the basis of a conviction, although ordinarily an extra judicial confession should be corroborated by some other material vide Thimma vs. The State of Mysore - AIR 1971 SC 1871, Mulk Raj vs. The State of U.P. - AIR 1959 SC 902, Sivakumar vs. State by Inspector of Police - AIR 206 SC 563 (para 41 & 42), Shiva Karam Payaswami Tewar vs. State of Maharashtra - AIR 2009 SC 1692, Mohd. Azad vs. State of West Bengal - AIR 2009 SC 1307.2
2010 (10) SCC 604 22
30. Further, in the case of Sahadevan and another vs. State of Tamilnadu 2012 (6) SCC 403, Hon'ble Apex Court in paragraphs 14 to 16 observed as under:-
"14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra- judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra- judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.
28) In the case of Aloke Nath Dutta v. State of W.B.3, the Hon'ble Apex Court, while holding that conviction based on extra-judicial confession in absence of other corroborating material, as unjustified, observed:
"87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that 3 (2007) 12 SCC 230] 23 for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.
89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof."
29) As is held by the Hon'ble Apex Court, extra-judicial confession is a weak piece of evidence and it requires corroboration in all material aspects. But, if the same inspires confidence, it can be believed to connect the accused with crime. But, here is a case where four months after the incident, the accused is alleged to have made a confession before the V.R.O. It may be true that the V.R.O. was known to Accused Nos. 1 and 2, but, definitely, these accused could not have gone and made a statement before the V.R.O. four months after the incident, more so, when he acted as a panch to all the proceedings in this case. Moreover, when none of the witnesses examined during investigation refer to participation of Accused No. 2 in their statement, it is difficult to believe that Accused No. 2 would have confessed, 24 inculcating her in the crime. Therefore, it is very difficult to believe the said circumstance and even if it is to be believed, we feel that the same by itself cannot be a ground to connect the accused with the crime.
III. "Purchase of Nylon Rope [M.O.1] from the shop of PW12"
30) PW12, who runs the hardware shop deposed that, about four years ago at about 11.00 A.M., two boys purchased plastic rope from him. Witness identifies the person who is wearing yellow shirt as the person who purchased nylon/plastic rope and brought by police to his shop on that day. It was Accused No. 1. He further states that, he will sell wire similar to the nylon wire marked as M.O.1. It would be appropriate to extract the same, as under:
"We will sell the wire similar to the nylon wire marked as M.O.1".
31) From the evidence-in-chief of PW12, it is clear that, his evidence is silent as to purchase of nylon rope by Accused No.2. Apart from that, his evidence-in-chief also does not show that M.O.1 [wire] was the wire, which was sold by him, but states that, the wire similar to M.O.1 will be sold by him. 25 Therefore, this circumstance, in our view, will not establish that the wire [M.O.1] used for tying the body was the wire which was purchased from the shop of PW12. Apart from that, in the cross-examination, he admits that, the wire similar to M.O.1 will be sold in the open market and are available freely. He further admits that, it is not possible for him to identify all the purchasers who come to his shop. According to him, Accused No. 1 purchased the plastic wire at about 8.00 to 8.15 P.M. and sold it at Rs.4/- per meter. But, there is no documentary evidence to that affect also. But, one fact, which throws some doubt, as stated earlier is, he sold wire similar to M.O.1 and no date or month is given as to the sale of the said nylon rope. Therefore, this circumstance, in our view, does not establish the involvement of the accused, more particularly, usage of the nylon wire purchased from the shop of PW12.
IV. "Sale of Cell Phone [M.O.12] of the deceased"
32) PW11 was examined to speak about same. His evidence-in-chief is as under:
"On 30.10.2011 at about 2.30 P.M. Circle Inspector of Police, Chittoor, along with his staff mediators, A1 and 26 another person came to my house. A1 had shown to me and informed to the police that he handed over cell phone to me. I admitted that I received cell phone from A1. The cell phone handed over by A1 to me is GFIVE. MO.12 is the cell phone which was handed over by A1 to me. A1 handed over the phone 15 days prior to the date of police came to my house. I requested A1 to give cell phone as my cell phone was not working hence, A1 handed over MO12 to me. Police seized MO.12 from me under cover of panchanama and obtained my signature. The seizure panchanama prepared for seizure of MO.12 dated 30.10.2011 at my house is Ex.P9."
33) But, one fact, which is required to be noted is that the cell phone, which was received from PW11 as belonging to the deceased, was not put for identification to any of the witnesses including the mother [PW5] and sister [PW6] of the deceased. Further, PW11 in his cross-examination admits that, he is not aware about the phone number of M.O.12 cell phone nor he furnished the same to the police. V. "Sale of Motorcycle [M.O.11] to PW10"
34) PW10 was examined to speak about purchase of M.O.11 from Accused No.1. He in his evidence deposed as under:
"I came to know that Jagadeesh is going to sell a motorcycle so, I approached him. I purchased Yamaha 27 RX 100 motorcycle from Jagadeesh (A1) about 4 years back for Rs.13,000/-. The motorcycle bearing No. AP.03.G.2887 was purchased by me from A1. On 30.10.2011 at about 1 P.M., A1 and A2 accompanied by police came to my house. Police enquired me whether I purchased motorcycle from A1 and I admitted that I purchased the motorcycle. I did not obtain transfer of motorcycle in my name. Police seized motorcycle from my house stating that the motorcycle was used in commission of offence. Police examined me. A mahazar was prepared for seizure of motorcycle I signed in it. The seizure mahazar prepared as Ex.P8. MO.11 is the motorcycle bearing no. AP.03.G.2887."
35) In the cross-examination, he admits as under:
"I have no friendship with A1. I did not state to the police that A1 is my friend. I did not know the door number and residential address of A1. I do not know the father's name of A1.
It is true one will purchase motorcycle only after verifying the documents. I purchased the motorcycle from A1 as he promised that he will get the vehicle registered in my name. The shop of A1 is adjacent to the auto showroom at Kattamanchi. I did not insist A1 to issue receipt for receiving Rs.13,000/-."
36) This evidence of PW10, in our view, is of no help to the prosecution, as it is not the case of the prosecution that the vehicle sold to PW10 is that of the deceased or the family members of the deceased. Accused No. 1 is said to be the 28 owner of the vehicle and he said to have sold the vehicle to PW10.
37) Coming to the evidence of the Investigating Officer [PW20], he in his evidence speaks that, after Accused No.1 and 2 confessing about killing the deceased, he searched them and found in possession of "Forme Cell Phone", three SIM cards and one memory card etc. The three SIM cards are marked as M.O.15 to M.O.18 respectively. Similarly, "Nokia Cell Phone" of Accused No. 2 and one SIM card was seized. M.O.19 is the SIM card. But, the cell phones seized from Accused Nos. 1 and 2 were already marked as M.O.13 and M.O.14 through other witnesses. But, no evidence has been adduced by the prosecution to show the effect of those seizures. It is not the case of the prosecution, at any point of time that these cell phones belong to the deceased or other family members. Mere seizure of cell phones, unless establish the incriminating nature, does not, in our view, help the prosecution in proving their case.
29VI. "Identification of the dead body as that of the deceased"
38) Coming to the identification of the body as that of the deceased, the evidence of Investigating Officer [PW20] show that, Murgaiah, PW5 [Sankaramma] and PW6 [Yamuna] stated before him that on seeing the "Mukku ringu", they identified the same as that of the deceased. But, strangely, the properties, which are produced before the court, do not include the ring. PW20 further admits that, as per inquest report, F.I.R, the statement of PW1 and doctor certificate, the age of the deceased is between 20 to 25 years. He further admits that, PW5 and PW6 on seeing the ornaments, clothes and photographs, informed that they belong to the deceased.
But, it is to be noted here that, PW5 and PW6 in their evidence speak about identifying the deceased basing on clothes, nose pin and ring. But, the ring, as stated earlier, was not produced before the court.
39) Coming to the clothes worn by the deceased as per Ex.P2, it is to be noted here that in the cross-examination PW20 admits PW5 [Sankaramma] informing them that, before the deceased left the house, she was wearing brown colour 30 chuddidar, red colour pant, light green colour chunni. Further, in one part of the inquest report, it was mentioned that the deceased was wearing red colour chudiddar, pachi colour flower design top, pachi colour chunni. Further, the witness states that the deceased was killed three months after she left the house. The dress worn by the deceased, at the time of leaving the house is different from the dress seized in this case. [dress shown in the photograph Ex.P2]. Therefore, the evidence of PW5 and PW6 that they have indentified the deceased basing on the dress, cannot be believed, more so, when the nose ring, which was there on the body was not produced before the Court.
40) In Kailash Gour and others vs. State of Assam4 the Apex Court held as under:
"It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between accused `may have committed the offence' and `must have committed the offence' which must be traversed by the prosecution by adducing reliable and 4 AIR 2012 SC 786 31 cogent evidence. Presumption of innocence has been recognised as a human right which cannot be wished away."
41) Having regard to above, we feel that the circumstances relied upon by the prosecution are not proved beyond doubt and the said circumstances do not form a complete chain, connecting the accused with the crime. Considering the judgments referred to above and in the absence of any cogent and convincing evidence, we feel that, it is not safe to convict the Appellant/Accused No. 1 for the charge of murder. Accordingly, we are inclined to acquit the Appellant/Accused No. 1 by extending benefit of doubt.
42) In the result, the Criminal Appeal is allowed. The conviction and sentence recorded against the Appellant/Accused No. 1 in the Judgment, dated 08.12.2015, in Sessions Case No. 166 of 2012 on the file the Ist Additional Sessions Judge, Chittoor, for the offences punishable under Sections 302 and 201 I.P.C. is set- aside and he is acquitted for the said offences. Consequently, the Appellant/Accused No. 1 shall be set at liberty forthwith, if he is not required in any other case or crime. The fine amount, if any, paid by the Appellant/Accused No. 1 shall be refunded to him. 32
43) Consequently, miscellaneous petitions, if any, pending shall stand closed.
_______________________________ JUSTICE C. PRAVEEN KUMAR ___________________________________ JUSTICE B.V.L.N. CHAKRAVARTHI Date: 15.12.2022 SM 33 THE HON'BLE SRI JUSTICE C. PRAVEEN KUMAR AND HON'BLE SRI JUSTICE B.V.L.N. CHAKRAVARTHI Criminal Appeal No. 29 OF 2016 (Per Hon'ble Sri Justice C.Praveen Kumar) Date: 15.12.2022 SM